Dhirubhai Naranbhai Patel, J. - (1.) THIS Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P. (C) No. 1237 of 2003 dated 7th August, 2008, whereby, the petition preferred by respondent No. 1 (original petitioner) was allowed by the learned Single Judge and, therefore, the appellants (original respondent Nos. 1 & 4) and have preferred this Letters Patent Appeal.
(2.) FACTUAL Matrix. • Respondent No. 1 (original petitioner) is widow of a teacher, who has expired on 2nd June, 1974. The widow is seeking family pension because of the death of her husband. • It appears that by virtue of Bihar Non -Government Elementary Schools (Taking Over of Control) Act, 1976 (herein after to be referred as "the Act, 1976" for the sake of brevity) management of several Non -Government Schools were taken over by the erstwhile State of Bihar. By virtue of Section 4(2) of the Act, 1976, every officer, teacher or other employees, holding any office or post in the school, taken over by the State Government, shall be deemed to have been transferred to and become an officer, teacher or employee of the State Government, with such designation, as the State Government may determine, with the same remuneration, same tenure and on the terms and conditions of service, prevailing prior to taking over of the said school and shall continue with the same, unless and until such tenure, remuneration or terms and conditions of the service are duly altered by the State Government. • It appears that prior to taking over of management of the schools, the teachers of those schools were getting the benefits under the "Triple Benefit Scheme", introduced by Education Department's Notification No. 3431 dated 4th September, 1964. This "Triple Benefit Scheme" was pertaining to Provident fund -cum -Insurance -cum -Pension. • Thus, it appears that there was no provision for family pension under the said scheme from 1964. • It further appears that whatever the benefits available to those teachers prior to taking over the management of Non -Government Schools, were to be continued as per Section 4(2) of the Act, 1976, unless and until they are amended by the State Government. • It further appears from the facts of the case that the aforesaid benefits were slightly modified or altered, with effect from 1st April, 1976 and now family pension is also included into the benefits, to be given to those teachers. • As the husband of respondent No. 1 (original petitioner), who was a teacher, has expired on 2nd June, 1974, he was not covered by the subsequent changes in the "Triple Benefit Scheme" and therefore, the widow of the said teacher having been denied the benefit of family pension, a writ petition bearing W.P.(C) No. 1237 of 2003 was preferred by her, which was allowed by the learned Single Judge vide order dated 7th August, 2008 and, hence the original respondent Nos. 1 to 4 have preferred this Letters Patent Appeal. Arguments canvassed by the counsel for the Appellants. • It is submitted by learned counsel for the appellants that the deceased teacher was an employee of Non -Government School. Management of Non -Government Schools was taken over by virtue of the Act, 1976 with effect from 1st January, 1971 as per Section 4(2) thereof and the terms and conditions of service were not altered, but, whatever was in existence, was to be continued even after taking over of the management till those terms and conditions of service are altered by the State Government. • It is further submitted by the learned counsel for the appellants that as on date of taking over of the management, the "Triple Benefit Scheme" was in force with effect from 1st April, 1962, the teachers were entitled to Provident Fund -cum -Insurance -cum -Pension benefits. Family pension was not part and parcel of the said Scheme. The Act, 1976 maintained the terms and conditions of the employment, as they were prior to taking over of management. This Act, 1976 is made effective from 1st January, 1971. In this case, the teacher has expired on 2nd June, 1974. Thus, as on the said date when the teacher expired, the only benefits available to the teachers were under the "Triple Benefit Scheme", 1964. • It is further submitted by the learned counsel for the appellants that subsequently with effect from 1st April, 1976 i.e. after approximately two years from the date of death of the teacher (husband of the original petitioner) the Act, 1976 came into force and, therefore the benefits of subsequently introduced family pension cannot be given to the wife of deceased teacher (original -petitioner). These aspects of the matter have not been properly appreciated by the learned Single Judge, while allowing the writ petition bearing W.P.(C) No. 1237 of 2003. • It is further submitted by the learned counsel for the appellants that concept of family pension was unknown to the teacher for the period prior to 1st April, 1976. This concept has been introduced from 1st April, 1976 to make payment of family pension to the spouse of teacher, who has expired and, therefore also wife of deceased teacher (original -petitioner) was not entitled to family pension, because her husband has expired on 2nd June, 1974. • It is further submitted by the learned counsel for the appellants that a confusion was created by the original petitioner on the ground that whatever were the benefits to be given to the government employees, are now also to be given to the teachers after taking over of the management of the schools. But, the circular which was meant for State Government employees, introduced in the year 1964 vide Finance Departments Memo No. Pen -103/64/9505 -F.I. dated 3rd September, 1964, was not applicable to the teachers and this aspect of the matter has not been properly appreciated by the learned Single Judge, while allowing the writ petition bearing W.P.(C) No. 1237 of 2003. • It is further submitted by the counsel for the appellants that the circular issued and meant for the government employees are not automatically applicable to the teachers, after taking over of the management by virtue of Bihar Non -Government Elementary Schools (Taking Over of Control) Act, 1976, especially reading to Section 4(2) thereof. What is expressly not given to the teachers, has been presumed by the learned Single Judge and hence, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside. • Learned counsel appearing for the appellants relying upon a decision, rendered by Hon'ble Patna High Court in the case of State of Bihar v. Arya Devi, as reported in : 2001 (2) PLJR 212, has submitted that the similar was the issue before the said High Court about the family pension and the benefit of family pension was denied to the employee, who has expired prior to 1st April, 1976. • It is further submitted by the learned counsel for the appellants that the husband of the original petitioner had served in the erstwhile State of Bihar and has also expired prior to bifurcation of the State of Jharkhand and, therefore, the cause of action will be arising within the erstwhile State of Bihar, sine the State of Jharkhand has been bifurcated with effect from 15th November, 2000 under Bihar Reorganization Act, 2000 and hence, the writ petition preferred by the wife of deceased teacher (original petitioner) before High Court of Jharkhand was not tenable at law.
(3.) ARGUMENTS canvassed by the learned counsel for respondent No. 1 (original petitioner). • Learned counsel appearing for respondent No. 1 (son of original petitioner) submitted that no error has been committed by the learned Single Judge in allowing the writ petition bearing W.P. (C) No. 1237 of 2003, vide order dated 7th August, 2008. • It is further submitted by the learned counsel for respondent No. 1 (son of original petitioner) that the Act, 1976 was made effective from 1st January, 1971 whereas her husband has expired on 2nd June, 1974 and, therefore, the original petitioner was entitled to get family pension, as per the Family Pension Scheme, introduced for the State Government employees vide Finance Department's Circular dated 3rd September, 1964 and this aspect of the matter has been properly appreciated by the learned Single Judge, while allowing the writ petition, preferred by the original petitioner. • It is further submitted by the learned counsel for respondent No. 1 that looking to the provisions of the Act, 1976, when the management of Non -Government Schools has been taken over by the erstwhile State of Bihar, automatically all the teachers became the employees of the State Government and hence, the benefit under Family Pension Scheme, floated by the State of Bihar in the year, 1964, should also be made available to the teachers. • It is submitted by the learned counsel for respondent No. 1 that the cut -off date prescribed by State i.e. 1st April, 1976 is absolutely arbitrary in nature in view of the fact that the widows of those teachers who have expired prior to 1st April, 1976, will not get family pension whereas the widows of such teachers who have expired after the cut -off date will get the benefit of family pension. This classification has no nexus with the goal to be achieved and it is not reasonable in nature. • It is further submitted by the learned counsel for respondent No. 1 that Hon'ble Patna High Court in the case of Lalita Devi v. State of Bihar, as reported in : 1999 (3) PLJR 236, has also held that such a classification is not reasonable in nature. • It is further submitted by the learned counsel for respondent No. 1 that neither Resolution No. 1069 dated 3rd June, 1977 nor Resolution No. 4426 dated 31st August, 1974 was relied upon by the appellants before the learned Single Judge in the writ petition and hence, these documents cannot be now relied upon by the appellants in this Letters Patent Appeal. • It is submitted by the learned counsel for respondent No. 1 that under the existing or prevailing "Triple Benefit Scheme" of the year, 1964 there was already mentioning about the benefit of pension. This includes family pension also. These aspects of the matter have been properly appreciated by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court. Reasons:;